The End of the Supreme Court as We Know it

The fight over Antonin Scalia's successor heralds a descent into politically uncharted territory.

February 16, 2016

Antonin Scalia, the recently deceased Supreme Court justice, leaves a complicated legacy
behind him. Going forward, what matters most is that he was a generally
(though not perfectly) reliable vote for the conservative faction on the
Court. Scalia’s sudden death effectively ends a long era of the Court being
controlled by Republicans, and marks the beginning of a new age
in which the politics of Supreme Court nominations will be increasingly
fraught.

President Barack Obama will—and should—nominate a replacement. But it is clear that he or
she will not be confirmed by the Republican-controlled Senate. The Republican
leadership is not even pretending that it will consider the merits of any
individual nominee.

This is clearly a setback for Democrats who have long wished to flip the ideological balance of the Court. Democrats should use this nomination fight to tilt the politics in their favor: by painting the Republicans as obstructionists, pointing out that the “tradition”
of refusing to confirm Supreme Court justices in an election year is
fictitious, and appealing to political constituencies who would like to see an individual
nominee confirmed.

Still, even if Democrats convince voters of their cause and prevail in an ideal scenario of winning both the Senate and the White House in 2016, the trend lines marked by Scalia’s death point to greater polarization and less consensus, not only in Congress, but in the Court itself.

The refusal of Senate Republicans to even consider any Obama nominee may improve the odds that Democrats will retain the White House and retake the Senate, but neither of those outcomes are close to guaranteed. And how long there will be a vacancy on the Court will, of course, depend on how the elections play out. So let’s game out the various scenarios.

It is probable, though not certain, that if Republicans capture
the White House they will carry the Senate. In this case, the president will be
able to get a nominee confirmed, even if this means ending the option of using a filibuster for Supreme
Court nominations. A slim Democratic majority would probably
eventually confirm a Republican nominee, although not an obvious radical like
Janice Rogers Brown, due to structural factors that make Democratic majorities reliant on red- or purple-state Democrats.

One wild card is the identity of the hypothetical
Republican president. Ted Cruz or Marco Rubio would presumably attempt to
nominate an orthodox conservative like Samuel Alito, making conflict with a Democratic
Senate more likely. If Donald Trump is president, nobody knows what kind of
justice he would nominate.

If Hillary
Clinton or Bernie Sanders is inaugurated next January, everything will depend
on control of the Senate. Should Democrats get it back, it is probable that
attempts by the Republican minority to serially filibuster nominees would lead
to the elimination of the filibuster for Supreme Court nominations, just as it
was for all other federal judicial appointments.

If President
Clinton or Sanders faces a Republican-controlled Senate, though, all bets are
off. The conventional wisdom is that Republicans will simply not be able
to institute a blanket ban on Democratic nominees. Supreme Court nominations will have been unusually central to the recently completed election, and Clinton or Sanders would claim a mandate to appoint Scalia’s replacement. Pressure from the media, voters, and
probably other justices would mount, leading a handful of
blue-state Republican senators to defect.

This is
certainly possible, but it would be foolish to simply assume that it will
happen. A “mandate” is not actually some magic source of power—a president’s
mandate on Supreme Court appointments is what the Senate says it is. Marginal
Republicans will face powerful countervailing pressures from congressional
colleagues, interest groups, and base voters. Any Republican senator who votes to put a
liberal on the Supreme Court would almost certainly face a fierce
primary challenge.

Serially obstructing Supreme Court nominees would probably
be bad for the popularity of the Republican Party, but senators are surely
aware of the paradox demonstrated in 2012 and 2014: Actions that are bad for
the Republican Party as a whole aren’t necessarily bad for individual
Republican members of Congress.

This would, in other words, be simply uncharted territory. Anyone who has
watched Senate Republicans perfect constitutional hardball cannot have any
certainty that they will adhere to previous norms and prevent a vacancy from
persisting for years.

Even if a
constitutional crisis is averted in 2017 by either one party controlling both the White
House and Senate or a Senate majority acquiescing to a president of the opposite party, a breakdown in the Supreme
Court nomination process is almost certainly coming down the road. The advice and
consent process established by the Constitution isn’t well adapted to
disciplined, ideologically cohesive parties, and the evolution in partisan
configuration will have mutually reinforcing effects.

The Supreme
Court has typically been a centrist institution, and since early in the Nixon
administration the typical median vote on the Court on politically salient
issues has been a country-club
Republican: Potter Stewart, Lewis Powell, Sandra Day O’Connor, and/or Anthony
Kennedy.

But as the University of Maryland legal scholar Mark Graber argued in
an important recent paper, there is nothing natural or inevitable about this. The typical centrism of the
Court was driven by two factors—ideologically heterogeneous parties and
relative elite consensus—that have vanished. Moderate Republicans will not
control the Court, because for all intents and purposes they no longer exist.
For the foreseeable future, the median vote on the Court will reliably vote
with the liberal or conservative faction on politically salient issues, and the
gap between liberal and conservative constitutional visions is likely to get
wider.

As the
stakes of Supreme Court nominations get ever higher,
getting Court vacancies filled during periods of divided government is
going to become increasingly difficult. Depending on the results of the 2016 elections, this dysfunctional future could very soon become our present.

Scott Lemieux is a Guardian U.S. contributing opinion writer, a lecturer in political science at the University of Washington, and a blogger at Lawyers, Guns and Money.